- Home
Up Outreach Appendices Press Studies Presentations MALPSS PSS Grants Pass Budgets Courts
| |
-
- COURTS
- Outline
-
- I. CONSTITUTIONAL REQUIREMENTS
- A. Amendment VIII of the United States
Constitution
- B. Amendment XIV of the United States
Constitution
-
- II. INTERPRETATIONS
- A. Eighth Amendment: A Guide to the
Eighth Amendment
- B. Amendment VIII Excess Bail or Fines,
Cruel and Unusual Punishment
C. Eighth Amendment: Free
Dictionary
- D. How the Courts View ACA Accreditation
-
- III. OREGON
- A. Oregon Criminal Justice Commission
- B. Court Opinions & Law Reviews/Studies
-
- IV. UNITED STATES
- A. Public Safety Organization
- B. Court Opinions & Law Reviews/Studies
- 1. Court Opinions Supporting Dolovich Topics
- 2. Law Review/studies Supporting Dolovich Topics
-
- V. ACADEMIA
-
- VI. OREGON COURTS: OREGON JUDICIAL SYSTEM
- A. Access to Justice Resources
- B. Flow Charts
-
- I. CONSTITUTIONAL
REQUIREMENTS
-
- A. AMENDMENT VIII of the
United States Constitution
- Excessive bail shall not be required, nor excessive
fines imposed, nor cruel and unusual punishments inflicted.
- B. AMENDMENT XIV
of the United
States Constitution
- SECTION. 1. All persons born or naturalized
in the United States, and subject to the jurisdiction thereof, are citizens of the United
States and of the State wherein they reside. No State shall make or enforce any law which
shall abridge the privileges or immunities of citizens of the United States; nor shall any
State deprive any person of life, liberty, or property, without due process of law; nor
deny to any person within its jurisdiction the equal protection of the laws.
- The Eighth Amendment (Amendment VIII) to the United States
Constitution is the part of the United States Bill of Rights (ratified December 15, 1791)
prohibiting the federal government from imposing excessive bail, excessive fines, or cruel
and unusual punishment.
-
- The incorporation of the Bill of Rights (or incorporation
for short) is the process by which American courts have applied portions of the U.S. Bill
of Rights to the states. Prior to 1925, the Bill of Rights was held only to apply to the
federal government. Under the incorporation doctrine, most provisions of the Bill of
Rights now also apply to the state and local governments.
-
- Prior to the ratification of the Fourteenth Amendment and
the development of the incorporation doctrine, the Supreme Court in 1833 held in Barron v.
Baltimore that the Bill of Rights applied only to the federal, but not any state
governments. Even years after the ratification of the Fourteenth Amendment, the Supreme
Court in United States v. Cruikshank (1876) still held that the First and Second
Amendment did not apply to state governments. However, beginning in the 1920s, a series of
United States Supreme Court decisions interpreted the Fourteenth Amendment to
"incorporate" most portions of the Bill of Rights, making these portions, for
the first time, enforceable against the state governments.
-
- II. INTERPRETATIONS
-
- A. Eighth Amendment: A Guide to the
Eighth Amendment
- Laws http://kids.laws.com/eighth-amendment
-
- The Eighth Amendment, or Amendment VIII of the United
States Constitution is the section of the Bill of Rights that states that punishments must
be fair, cannot be cruel, and that fines that are extraordinarily large cannot be set. The
Eighth Amendment was introduced as a part of the Bill of Rights into the U.S. Constitution
on September 5, 1789 and was voted for by 9 out of 12 states on December 15, 1791.
-
- Understanding the Eighth Amendment Line by Line If
you are confused by what each line of the Eighth Amendment means, here are some good
explanations to make the Eighth Amendment easier to understand:
-
- "Excessive bail shall not be required, nor
excessive fines imposed":
-
- The courts are not allowed to assign an accused
person a large and excessive amount of money for bail. This is because if they could, a
judge would have the chance to judge someone early on and set a bail amount based on that.
- Bail is the property or money given to a court as a
promise that the accused person will return for his trial. If the accused person does not
show up, he or she will lose their bail money or property. The amount of bail assigned
depends on the type of crime committed and the chance that the accused person will return
for his trial. If the crime is very serious, the bail will be higher.
-
- "Nor cruel and unusual punishments inflicted":
-
- According to the Eighth Amendment, punishments
cannot be cruel or unusual. However, it is not exactly clear what cruel and unusual really
means. When the Eighth Amendment was written, the Framers were considering situations
where severe punishments would be used, such as being strangled, branded, or burned, or
being locked in stocks. The Eighth Amendment works to prevent these types of punishments.
-
- Facts about the Eighth Amendment
-
- The Eighth Amendment
is a part of the Bill of Rights, which were introduced by James Madison
- The Eighth Amendment
also applies to the States.
- Some punishments are
completely forbidden under the Eighth Amendment, such as taking away a persons
citizenship, or painful and hard labor.
- Because of this
amendment, there are laws for the death penalty (for example, death by firing squad is not
allowed).
-
- B. Amendment VIII Excess Bail or Fines,
Cruel and Unusual Punishment
(1791)
- US Legal
http://system.uslegal.com/u-s-constitution/amendment-viii-excess-bail-or-fines-cruel-and-unusual-punishment-1791/
-
- The Eighth amendment of the US Constitution was adopted
in 1791 as part of the US Bill of Rights. The amendment reads: "Excessive bail shall
not be required, nor excessive fines imposed, nor cruel and unusual punishments
inflicted."[i] The Eighth Amendment has three clauses, namely the excessive bail
clause; excessive fines clause; and cruel and unusual punishment clause.
-
- Excessive Bail clause: The excessive bail clause revolves
around the principle that "an accused is presumed innocent until found guilty."
Bail is an amount the courts may require an accused to furnish as security to ensure the
accused persons appearance for trial. The bail amount can be money, property or a
bond. Although, the bail amount is decided by the court, the excessive bail clause
requires reasonableness in fixing the amount. If the accused is able to furnish the bail
amount to the court, then the accused will be set free on bail until trial. During the
bail period the accused can go back into normal society. The bail system ensures that the
accused will come back to court for trial. Courts consider the following in determining
bail: 1) the severity of the offence, 2) levels of evidence proffered against the accused,
3) family and employment ties and commitments of the accused, 4) if the accused is able to
furnish the bond amount, and 5) if there is any possibility for the accused to flee.
-
- Using the standards above, courts set a reasonable bail
amount however, the bail amount should not be too low so that the accused is enticed into
forfeiting the bail amount and fleeing. If a court finds that the accused, if released,
will likely cause danger to the community a court may deny bail altogether.
-
- If the accused appears for future court proceedings the
accused will get back his/her bail money upon conclusion of the court proceedings. If the
accused fails to appear he/she forfeits the bail amount.
-
- Excessive fines clause: Unlike the excessive bail clause,
courts are given greater freedom under excessive fines clause. Imposing fines is
considered a discretionary power of the judge, and the decision of a lower court judge on
fines will be over turned if that judge is found to have abused his/her discretion in
deciding setting fines. Thus, abuse of discretion is the standard used in checking if
fines are imposed excessively, arbitrarily or capriciously.
-
- Cruel and unusual punishment: According to this clause,
state and federal governments shall not sentence an accused to cruel and unusual
punishments, however heinous the criminal act may be. All punishments should be directly
proportionate to the offense committed. Appellate courts have authority to overturn any
disproportionate punishment. Although, there is no definition provided for the term
cruel and unusual punishment some examples have been developed through case
law, namely: castration, burning at the stake, quartering, crucifixion, breaking on the
wheel, and other punishments that involve a lingering death. Additionally, a state statute
which imposed compulsory sterilization of criminals and the feeble-minded in order to
prevent them from reproducing was invalidated due to it being cruel and unusual.
-
- A test entitled the Trop standard was evolved
in a case called Trop v. Dulles.[ii] Under the Trop standard the Supreme Court
tests whether a punishment is offensive to society rather than just being shocking and
outrageous. Under the Trop test, a survey is conducted of all state legislation to find
out if a particular type of legislation is authorized by most of the states. If most of
the states have recognized the legislation then the court will approve the type of
punishment prescribed by the legislation as it is not against the evolving standards of
decency.
-
- Another test used by the Supreme Court in deciding the
constitutionality of a punishment is called the Originalist approach. Under
this test the Supreme Court invalidates all the punishments which seem to have not been
approved by the framers of the Eighth Amendment. Accordingly a particular punishment is
considered cruel and unusual, if that punishment was prohibited during the time the Eight
Amendment was ratified.
-
- [i] USCS Const. Amend. 8
- [ii] Trop v. Dulles, 356 U.S. 86 (U.S. 1958)
-
- C. Eighth Amendment
-
- Free Dictionary:
The Eighth Amendment to the U.S. Constitution reads:
-
- Excessive bail shall not be
required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.
-
- The Eighth Amendment to the U.S. Constitution, ratified in
1791, has three provisions. The cruel and unusual punishments clause restricts the
severity of punishments that state and federal governments may impose upon persons who
have been convicted of a criminal offense. The Excessive Fines Clause limits the amount
that state and federal governments may fine a person for a particular crime. The Excessive
Bail Clause restricts judicial discretion in setting bail for the release of persons
accused of a criminal activity during the period following their arrest but preceding
their trial.
-
- Important Court Opinions On AMENDMENT VIII of the
United States Constitution
-
- D. How the Courts View ACA
Accreditation
-
- Friedmann, Alex. October, 2014. How the Courts View ACA
Accreditation. Prison Legal News, October, 2014, page 18.
- https://www.prisonlegalnews.org/news/2014/oct/10/how-courts-view-aca-accreditation/
-
- The American Correctional Association (ACA), a private
non-profit organization composed mostly of current and former corrections officials,
provides accreditation to prisons, jails and other detention facilities.
-
- According to the ACA, "Accreditation is a system of
verification that correctional agencies/facilities comply with national standards
promulgated by the American Correctional Association. Accreditation is achieved through a
series of reviews, evaluations, audits and hearings."
-
- To achieve accreditation a facility must comply with 100%
of applicable mandatory standards and at least 90% of applicable non-mandatory standards.
Under some circumstances, the ACA may waive certain accreditation standards. There are
different standards for different types of facilities, such as adult correctional
institutions, jails, juvenile detention facilities and boot camp programs.
-
- Notably, the accreditation process is basically a paper
review. The ACA does not provide oversight or ongoing monitoring of correctional
facilities, but only verifies whether a facility has policies that comply with the
ACAs self-promulgated standards at the time of accreditation. Following initial
accreditation, facilities are re-accredited at three-year intervals.
-
- As a result, some prisons have experienced significant
problems despite being accredited.
-
- A Colorado, district court stated it was "simply
ludicrous" for the defendants to argue they were entitled to summary judgment because
"the American Correctional Association formally accredited" the facility and ACA
standards address the issue.
-
- However, other courts have taken ACA accreditation into
consideration when determining the constitutionality of policies or practices at
correctional facilities, such as in Yellow Horse v. Pennington County, 225 F.3d 923, 928
(8th Cir. 2000) (suicide prevention procedures) and Grayson v. Peed, 195 F.3d 692, 697
(4th Cir. 1999) (death of restrained prisoner).
-
- Therefore, incarcerated litigants should use caution when
basing arguments on violations of accreditation standards rather than violations of
constitutional or statutory rights, and should note the above case law when corrections
officials raise accreditation as a defense in lawsuits related to conditions of
confinement in prisons and jails.
-
- 1. ACA Accreditation: Constitutional Requirements
of Eighth and Fourteenth Amendments
-
- American Correctional Association (ACA)
Accreditation
- National Commission on Correctional Health Care
(NCCHC) Accreditation
-
- 2. Court Opinions On ACA Accreditation
-
- Prison Legal News, Oct. 2009, p.40.
- Prison Legal News, Nov. 2013, p.30.
- Prison Legal News, Oct. 2013, p.28; May 2013, p.22; Feb.
2012, p.30.
- Bell v. Wolfish, 441 U.S. 520, 543 n.27 (1979).
U.S. Supreme Court
- Grenning v. Miller-Stout, 739 F.3d 1235, 1241 (9th
Cir. 2014)
- Gates v. Cook, 376 F.3d 323, 337 (5th Cir. 2004)
- Graves v. Arpaio, 2008 U.S. Dist. LEXIS 85935 (D.
Ariz. Oct. 22, 2008) [PLN, Jan. 2010, p.43; May 2009, p.28].
- Ruiz v. Johnson, 37 F.Supp.2d 855, 902, 924-25
(S.D. Tex. 1999), revd on other grounds, 243 F.3d 941 (5th Cir. 2001).
- Feliciano v. Gonzalez, 13 F.Supp.2d 151, 158 n.3
(D.P.R. 1998).
- LaMarca v. Turner, 662 F.Supp. 647, 655 (S.D. Fla.
1987), appeal dismissed, 861 F.2d 724 (11th Cir. 1988)
- Boulies v. Ricketts, 518 F.Supp. 687, 689 (D.
Colo. 1981).
- Yellow Horse v. Pennington County, 225 F.3d 923,
928 (8th Cir. 2000) (suicide prevention procedures)
- Grayson v. Peed, 195 F.3d 692, 697 (4th Cir. 1999)
(death of restrained prisoner).
-
- III. OREGON
-
- A. Oregon Criminal Justice Commission
-
- 2010. Oregon Criminal
Justice Commission: Administrative Overview
-
- B. Court Opinions
-
- 1974. Schmidt V. Lessard,
(1974) United States Supreme Court, No. 73-568
- 1980. Capps v. Atiyeh:
495 F.Supp. 802. Civ. Nos. 80-141, 80-6014. United States District Court, D. Oregon (1980)
- 1981. Atiyeh v. Capps,
449 U.S. 1312, 101 S. Ct. 829, 66 L. Ed. 2d 785 (1981)
- 1983. Capps v. Atiyeh,
559 F. Supp. 894 (D. Or.1983)
1986. Whitley v. Albers, No.
84-1077 (1986)
- 1993. LeMaire V. Maass, 12 F.3d
1444, Nos. 91-35249, 91-35557 (1993)
-
- Constitutional Court Opinions Related To Capps v. Atiyeh
-
- 1958. Trop v. Dulles, 356 U.S. 86, 100, 78 S. Ct.
590, 597-98, 2 L. Ed. 2d 630 (1958)
- 1961. Monroe v. Pape, 365 U.S. 167, 81 S. Ct. 473, 5
L. Ed. 2d 492 (1961)
- 1962. Robinson v. California, 370 U.S. 660, 666, 82
S. Ct. 1417, 1420, 8 L. Ed. 2d 758 (1962)
- 1965. Grenfell v. Gladden, 241 Or. 190, 405 P.2d 532
(1965)
- 1975. Bekins v. Cupp, 21 Or.App. 16, 533 P.2d 817
(1975)
- 1975. Curtis v. OSCI, 20 Or.App. 530, 532 P.2d 798
(1975)
- 1967. Kent v. Cupp, 26 Or.App. 799, 802-03, 554 P.2d
196, 197-98 (1967)
- 1972. Morales v. Schmidt, 340 F. Supp. 544, 548-49
(W.D.Wis. 1972), rev'd, 489 F.2d 1335 (7th Cir.1973), remanded on rehearing, 494
- F.2d
85 (7th Cir.1974)
- 1974. Wolff v. McDonnell, 418 U.S. 539, 561-62, 94
S. Ct. 2963, 2977-78, 41 L. Ed. 2d 935 (1974)
- 1975. O'Connor v. Donaldson, 422 U.S. 563, 584, 95
S. Ct. 2486, 2498, 45 L. Ed. 2d 396 (1975)
- 1976. Pugh v. Locke, 406 F. Supp. 318, 324 (M.D.
Ala.1976)
- 1976. Estelle v. Gamble, 429 U.S. 97, 97 S. Ct. 285,
50 L. Ed. 2d 251 (1976)
- 1976. Gregg v. Georgia, 428 U.S. 153, 186, 96 S. Ct.
2909, 2931, 49 L. Ed. 2d 859 (1976)
- 1977. Battle v. Anderson, 564 F.2d 388, 393 (10th
Cir.1977)
- 1977. Todaro v. Ward, 565 F.2d 48, 52 (2d Cir.1977)
- 1977. Bowring v. Godwin, 551 F.2d 44, 48 n. 3 (4th
Cir. 1977)
- 1978. Hutto v. Finney, 437 U.S. 678, 687, 98 S. Ct.
2565, 2571, 57 L. Ed. 2d 522 (1978)
- 1878. Bell v. Wolfish, 441 U.S. at 547, 99 S. Ct. at
1878.
- 1978. Wolfish v. Levi, 573 F.2d 118, 125 (2d
Cir.1978)
- 1979. Spain v. Procunier, 600 F.2d 189, 195 (9th
Cir. 1979)
- 1979. Palmigiano v. Garrahy, 443 F. Supp. 956, 966
(D.R.I.1977), remanded, 599 F.2d 17 (1st Cir.1979)
- 1979. Bell v. Wolfish, 441 U.S. 520, 99 S. Ct. 1861,
60 L. Ed. 2d 447 (1979)
- 1980. Hayward v. Procunier, 629 F.2d 599, 603 (9th
Cir. 1980), cert. denied, 451 U.S. *908 937, 101 S. Ct. 2015, 68 L. Ed. 2d 323 (1981)
- 1980. Cf. West v. Lamb, 497 F. Supp. 989, 1001
(D.Nev.1980)
- 1980. Manney v. Cabell, 654 F.2d 1280 (9th Cir.1980)
- 1980. Ohlinger v. Watson, 652 F.2d 775, 777 (9th
Cir.1980)
- 1980. Ruiz v. Estelle, 503 F. Supp. 1265, 1339 (S.D.
Tex.1980)
- 1980. Armstrong v. Cupp, No. 121,599 (Marion County
Cir.Ct., July 22, 1980).
- 1980. Ramos v. Lamm, 639 F.2d 559, 572 (10th
Cir.1980), cert. denied, 450 U.S. 1041, 101 S. Ct. 1759, 68 L. Ed. 2d 239 (1981)
- 1981. Rhodes v. Chapman, 452 U.S. 337, 101 S. Ct.
2392, 69 L. Ed. 2d 59 (1981)
- 1981. Atiyeh v. Capps, 449 U.S. 1312, 101 S. Ct.
829, 66 L. Ed. 2d 785 (1981)
- 1981. Wright v. Rushen, 642 F.2d 1129 (9th Cir.
1981). 652 F.2d 823 (9th Cir.1981)
- 1982 Cf. Albers v. Whitley, 546 F. Supp. 726 (D.
Or.1982)
- 1982. Hoptowit v. Ray, 682 F.2d 1237, 1245 n. 2 (9th
Cir.1982)
- 1982. Smith v. Fairman, 690 F.2d 122, 125 (7th
Cir.1982)
- 1982. Ruiz v. Estelle, 679 F.2d 1115, 1139-40 (5th
Cir.1982)
- 1982. Stickney v. List, 519 F. Supp. 617 at 620 (D.
Nev.1982).
- 1982. Albers v. Whitley, 546 F. Supp. 726
(D.Or.1982)
- 1982. Sterling v. Cupp, 290 Or. 611, 616 n. 5, 625
P.2d 123, 127 n. 5 (1981). But cf. Ruiz v. Estelle, 679 F.2d 1115, 1156-59 (5th Cir.1982)
- 1982. Youngberg v. Romeo, ___ U.S. ___, ___, 102 S.
Ct. 2452, 2461, 73 L. Ed. 2d 28 (1982) quoting 644 F.2d 147, 178 (3rd Cir.1980)
-
- ******
-
- 1982. Cf. Stanwood v. Green, No. 72-981 (consent
decree filed March 12, 1982; Coos County, Oregon jails)
- 1981. Roberts v. Speelman, No. 81-6096 (consent
decree filed July 21, 1981; Baker County, Oregon jails)
- Allen v. Hammond, No. 77-1030
- Nims v. Sullivan, No. 77-1031
-
- Law School Articles Quoted In Capps v. Atiyeh
-
Without "Due Process": Unconstitutional
Law in Oregon, 49 Or.L.Rev. 125, 131-35 (1970)
- The Remedial Process in Institutional Reform Litigation,
78 Colum.L.Rev. 784, 807-08 (1978)
- Complex Enforcement: Unconstitutional Prison Conditions,
94 Harv.L.Rev. 626, 628 (1981)
-
- IV. UNITED STATES
-
- A. Public Safety Organization
-
- B. Court Opinions & Law
Reviews/Studies
-
- The full text of the Eighth Amendment of the U.S.
Constitution reads as follows.
-
- "Excessive
bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments
- inflicted."
U.S. CONST. amend. VIII.
-
- Cruelty, Prison
Conditions, and the Eighth Amendment
Although the 8th Amendment
Clause prohibits cruel and unusual punishment, its normative force derives chiefly from
its use of the word cruel. The following topics are from Cruelty, Prison Conditions, and
the Eighth Amendment. They are definitive; see original.
-
- Dolovich, Sharon. October 27, 2009. Cruelty,
Prison Conditions, and the Eighth Amendment. New York University Law Review, Vol. 84,
No. 4, 2009; Georgetown University Law Center.
-
- supreme court principles guiding
judicial analyses of the eighth amendment
- whether the sentence would be
cruel in light of the crime
- pretrial detainees & 14th
amendment due process clause
- overcrowding
- unconstitutional conditions
when they satisfy two doctrinal components
- Farmer v. Brennans
flawed reasoning
- prison conditions as state
punishment
- the reach of state punishment:
harms on the margins
- When are prison conditions
cruel?
- the states carceral
burden
- state punishment and cruel
institutions
- official actions and
institutional cruelty
- prisons as sites of
institutional cruelty
- capturing cruelty doctrinally
- overcoming the eleventh
amendment
- the problem with strict
liability
- the problem with recklessness
and the case for (heightened) negligence
- implementing negligence: the
case for a double standard
- the problem with negligence
- the case for (modified) strict
liability
- conclusion:
judicial cruelty and the limits of the law
-
- 1. Court Opinions Supporting Dolovich Topics The
following lists of opinions are not definitive and they are not complete; see original and
Dolovich
Analysis.
-
- Supreme Court Principles Guiding Judicial Analyses of
the Eighth Amendment
- 1892. ONeil v. Vermont, 144 U.S. 323, 339
(1892)
- 1958. Trop v. Dulles, 356 U.S. 86, 100 n.32 (1958)
- 1972. Furman v. Georgia, 408 U.S. 238, 382 (1972)
- 1991. Harmelin v. Michigan, 501 U.S. 957,
100405 (1991)
- 2002. Atkins v. Virginia, 536 U.S. 304, 31416
(2002)
- 2005. Roper v. Simmons, 543 U.S. 551, 56465
(2005)
- 2008. Kennedy v. Louisiana, 128 S. Ct.2641, 2651
(2008
-
- Unconstitutional Conditions When They Satisfy Two
Doctrinal Components
- 1976. Estelle v. Gamble, 429 U.S. 97, 104 (1976)
- 1991. Wilson v. Seiter, 501 U.S. 294, 296, 298
(1991)
- 1993. Helling v. McKinney, 509 U.S. 25, 35 (1993)
- 1994. Farmer v. Brennan, 511 U.S. 825, 834, 836 - 37
(1994; key case in this area)
-
- 2. Law Reviews/Studies Supporting Dolovich Topics
- Lists are in the sequential order written in Cruelty,
Prison Conditions, and the Eighth Amendment. They are not definitive or complete; see
original and Dolovich
Analysis.
-
- Supreme Court Principles Guiding Judicial Analyses of
the Eighth Amendment
- David B. Hershenov, Why Must
Punishment Be Unusual as Well as Cruel To Be Unconstitutional?, 16 PUB. AFF. Q. 77
(2002)
- John F. Stinneford, The Original
Meaning of "Unusual": The Eighth Amendment as a Bar to Cruel Innovation, 102
NW. U. L. REV. 1739 (2008).
- Philip P. Hallie, Cruelty, in 1
ENCYCLOPEDIA OF ETHICS 229, 229 (Lawrence C. Becker & Charlotte B. Becker eds., 1992)
("Cruelty is the activity of hurting sentient beings.")
- John Kekes, Cruelty and Liberalism,
106 ETHICS 834, 838 (1996)
- Dean J. Champion, Measuring Offender
Risk 5354 (1994)
-
- Unconstitutional Conditions When They Satisfy Two Doctrinal
Components
- Howard Gillman, Political Development
and the Origins of the "Living Constitutionalism" 4. Although living
constitutionalism is generally regarded as opposed to originalism.
- Jack M. Balkin, Framework Originalism
and the Living Constitution, 103 NW. U. L. REV. 549, 557 (2009).
-
- V. ACADEMIA
-
- The authors have no idea of the significance of the
following list of law reviews and/or studies; the list is not definitive and it is not
complete; see Dolovich
Analysis for more.
-
- 1981. Eighth
Amendment--A Significant Limit on Federal Court Activism in Ameliorating State Prison
Conditions
- 1991. Prisoners' Rights
- 1992. Cruelty, Encyclopedia of Ethics
- 1994. Notes: Helling V.
Mckjnneyand Smoking in The Cell Block: Cruel and Unusual Punishment?
- 1994. Measuring Offender Risk
- 1996. Cruelty and Liberalism
- 2000. Prison Overcrowding: Standards
in Determining Eighth Amendment Violations
- 2002. Why Must Punishment Be Unusual as Well as Cruel To Be
Unconstitutional?
- 2006. Incapacitation
through Maiming: Chemical Castration, the Eighth Amendment, and the Denial of Human
Dignity
- 2008. The Original Meaning of "Unusual":
The Eighth Amendment as a Bar to Cruel Innovation
- 2009. Cruelty, Prison
Conditions, and the Eighth Amendment
- 2009. Framework Originalism and the Living Constitution
- 2012. The Eighth
Amendment Evolves: Defining Cruel and Unusual Punishment through the Lens of Childhood and
Adolescence
-
- Abstracts of the above law reviews and/or studies follow.
-
2009. Cruelty, Prison Conditions, and
the Eighth Amendment
-
- Dolovich, Sharon. October 27, 2009. Cruelty,
Prison Conditions, and the Eighth Amendment. New York University Law Review, Vol. 84,
No. 4, 2009; Georgetown University Law Center.
-
- Abstract: The Eighth Amendment prohibits cruel and unusual
punishment, but its normative force derives chiefly from its use of the word cruel. For
this prohibition to be meaningful in a society where incarceration is the primary mode of
criminal punishment, it is necessary to determine when prison conditions are cruel. Yet
the Supreme Court has thus far avoided this question, instead holding in Farmer v. Brennan
that unless some prison official actually knew of and disregarded a substantial risk of
serious harm to prisoners, prison conditions are not "punishment" within the
meaning of the Eighth Amendment. Farmers reasoning, however, does not withstand
scrutiny. As this Article shows, all state-created prison conditions should be understood
to constitute punishment for Eighth Amendment purposes.With this in mind, this Article
first addresses the question of when prison conditions are cruel, by considering as a
normative matter what the state is doing when it incarcerates convicted offenders as
punishment and what obligations it thereby incurs toward its prisoners. This Article then
turns to the question of constitutional implementation and considers what doctrinal
standards would best capture this understanding of cruel conditions.
-
- At the heart of the argument is the recognition that the
state, when it puts people in prison, places them in potentially dangerous conditions
while depriving them of the capacity to provide for their own care and protection. For
this reason, the state has an affirmative obligation to protect prisoners from serious
physical and psychological harm. This obligation, which amounts to an ongoing duty to
provide for prisoners basic human needs, may be understood as the states
carceral burden. This, at its core, is the problem with Farmers recklessness
standard: It holds officers liable only for those risks they happen to notice - and
thereby creates incentives for officers not to notice - despite the fact that when prison
officials do not pay attention, prisoners may be exposed to the worst forms of suffering
and abuse. As this Article shows, either a heightened negligence standard on which a
lesser burden would attach to those claims alleging macro-level failures of care or a
modified strict liability approach would be far more consistent with the possibility of
meaningful Eighth Amendment enforcement. Unfortunately, by encouraging judges to deny the
existence of cruel treatment in the prisons, the prevailing doctrinal regime instead makes
the judiciary into yet another cruel institution vis-à-vis societys prisoners.
-
- VI. OREGON COURTS: OREGON JUDICIAL
SYSTEM
- http://courts.oregon.gov/OJD/OSCA/cpsd/courtimprovement/access/pages/resources.aspx
-
- A. Access to Justice Resources
The following links provide additional information on the procedures, services, and people
in Oregon's legal system, facts and trends affecting Oregon's diverse population,
initiatives to improve access to Oregon's justice system, and links to national resources
-
- B. Flow Charts
-
- 1. Whos in
Charge of Oregons Criminal Justice System? - Simple (Oregon Justice System Flow
Chart_1)
- 2. Bureau of Justice
Flowchart of Criminal Justice System - Complex (Oregon Justice System Flow Chart_2)
- 3. Juvenile Justice
System Structure and Process Case Flow Diagram (U.S. Office of Juvenile Justice and
Delinquency Prevention)
- 4. Flow Charts of Oregon County Juvenile Justice
Departments
- Yamhill Countys
Juvenile Justice System
- Marion County Juvenile
Departments Flow Charts
- Lane County Adult Criminal Justice System
Flow Chart
- Lane County Public
Safety Coordinating Council. December 1, 2011 Status of the Public Safety System in Lane
County as per Senate Bill 77. Report to the Board of County Commissioners. Eugene, OR.
|